Mariolle v. Volvo Group North America Inc. et al

Filing 46

ORDER STRIKING WITHOUT PREJUDICE DOE 1 AMENDMENT AND DOE 2 AMENDMENT FILED IN CIVIL CASE NO. 09-1209. Signed by Judge Maxine M. Chesney on May 19, 2010. (mmclc1, COURT STAFF) (Filed on 5/19/2010)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By order filed May 11, 2010, the Court approved the parties' stipulation to, inter alia, afford each plaintiff leave to amend his or her respective pleading, and set a deadline of May 21, 2010 for each plaintiff to file any such amended pleading. On May 14, 2010, plaintiff Raymond P. Mariolle filed two documents, one such filing titled "Doe 1 Amendment to Complaint for Personal Injuries and Damages," by which he v. VOLVO GROUP NORTH AMERICA, INC., et al., Defendants. ___________________________________ REGINA LYNN MARIOLLE Plaintiff, v. VOLVO GROUP NORTH AMERICA, INC., et al., Defendants / RAYMOND P. MARIOLLE Plaintiff, United States District Court No. C-09-1209 MMC No. C-09-4250 MMC ORDER STRIKING WITHOUT PREJUDICE DOE 1 AMENDMENT AND DOE 2 AMENDMENT FILED IN CIVIL CASE NO. 09-1209 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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purports to amend his complaint to substitute Wittke Waste Equipment in place of "Doe 1," and the other titled "Doe 2 Amendment to Complaint for Personal Injuries and Damages," by which he purports to amend his complaint to substitute Labrie Environmental Group in place of "Doe 2."1 In federal court, "[a]s a general rule, the use of `John Doe' to identify a defendant is not favored." See Gillespie v. Civiletti, 629 F. 2d 637, 642 (9th Cir. 1980). Even where a defendant is identified as a "Doe," when the plaintiff thereafter seeks to substitute a named defendant, the preferred practice is the filing of an amended complaint adding the new defendant and deleting the "Doe" defendant. See, e.g., Lindley v. General Elec. Co., 780 F. 2d 797, 801-02 (9th Cir.) (holding plaintiff properly substituted named defendant for "Doe" defendant where plaintiff filed amended complaint adding named defendant and eliminating "Doe" as party), cert. denied, 476 U.S. 1186 (1986). In accordance therewith, the Court's May 11, 2010 Order provides for the filing of an "amended complaint." (See Order, filed May 11, 2010, at 3.) Plaintiff Raymond P. Mariolle, however, has attempted to add new parties by the unauthorized means of filing an "amendment to" his complaint. Accordingly, "Doe 1 Amendment to Complaint for Personal Injuries and Damages" and "Doe 2 Amendment to Complaint for Personal Injuries and Damages" are hereby STRICKEN, without prejudice to Raymond P. Mariolle's filing a First Amended Complaint no later than May 21, 2010. IT IS SO ORDERED.

Dated: May 19, 2010

MAXINE M. CHESNEY United States District Judge

To date, Regina Lynn Mariolle has not taken any steps to amend her First Amended Complaint. 2

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